Legislative Lowlights: ‘Tis the Season for ‘Heartbeat’ Bans

Ohio Gov. John Kasich is mulling what to do about abortion policy in his state. But there's a good chance he'll pull a move similar to one he did in 2016. He vetoed a terrible anti-abortion law only to sign a slightly less restrictive but still terrible measure. Yuri Gripas/AFP/Getty Images

Rewire.Newstracksanti-choice and anti-LGBTQ legislation as it works its way through state legislatures. Here’s an overview of the bills we’re watching.

Lawmakers in South Carolina and Missouri are racing to see who can get the most abortion restrictions filed before the new year, Republicans in South Dakota want pregnant patients to listen to their ultrasounds, and the future of reproductive rights in Ohio remains unclear. So … happy holidays?!

South Carolina

Prefiling for South Carolina’s 2019 legislative session has commenced, and anti-abortion lawmakers are making sure they have all their bases covered. On Tuesday, state Rep. Josiah Magnuson (R-Campobello) filed H 3289, which would change the state constitution to grant a right to life to embryos and fetuses. The “Personhood Act of South Carolina” states “[t]he right to life for each born and preborn human being vests at fertilization.” The bill clarifies that the law would not prohibit contraception, in vitro fertilization, or any medical procedure designed to save the life of a pregnant person. Much like the personhood measure recently approved by voters in Alabama, the law wouldn’t actually criminalize anything. But it would pave the way for far more restrictions.

Last week, state Sens. Larry Grooms (R-Charleston) and Greg Hembree (R-Dillon-Horry) prefiled a measure to require testing for a detectable fetal heartbeat prior to an abortion. If a fetal heartbeat is detected—which can occur as early as six weeks into pregnancy—doctors would be be prohibited from performing an abortion. A companion bill was filed Tuesday in the state House by Rep. John McCravy (R-Greenwood). That measure already has more than 50 co-sponsors, including four Democrats. Looking at you, Reps. Jackie Hayes, Frank Atkinson, Ivory Thigpen, and William Wheeler. Except in cases of medical emergency, a person who fails to test for a fetal heartbeat or who performs an abortion once a fetal heartbeat has been detected would be guilty of a felony.

If that doesn’t stick, lawmakers also filed a ban on the safest, most commonly used method of second-trimester abortion. The so-called “Unborn Child Protection from Dismemberment Abortion Act,” would make it a felony to perform the dilation and evacuation (D and E) procedure, which is typically used around 14 weeks’ gestation. A physician who knowingly performs such a procedure would be guilty of a felony and, upon conviction, be fined $10,000 and/or imprisoned for two years. Based on model legislation drafted by the National Right to Life Committee (NRLC), D and E bans have been enacted in nine states in the past four years: Alabama, Arkansas, Kansas, Kentucky, Louisiana, Mississippi, Oklahoma, Texas, and West Virginia. With the exception of Mississippi and West Virginia, courts have blocked or temporarily enjoined the laws in each. A D and E ban in Ohio is awaiting signature, but more on that later.

And finally, Republican lawmakers also filed a pair of bills that would allow college and university student groups to discriminate against LGBTQ students and others by limiting membership based on religious belief. State Sen. Chip Campsen (R-Charleston) filed the “Student Association Freedom of Religion Act,” while state Rep. Garry Smith (R-Greenville) filed the “Forming Open and Robust University Minds (FORUM) Act.” Both bills would prohibit public institutions of higher learning from taking any action or enforcing any policy that denies a religious student association any benefit available to other associations based on the religious student association’s requirement that its leaders or members adhere to its “sincerely held religious beliefs” or standards of conduct.

Missouri

Lawmakers in Missouri continued to prefile legislation in anticipation of the 2019 legislative session set to begin next month. State house Rep. Sonya Anderson (R-Springfield) filed HB 282, which would require abortion providers or family-planning agencies to provide informed consent materials to any pregnant person they refer to an out-of-state abortion clinic. Anderson has tried and failed to pass this measure for the past four years. This issue might be more relevant this year as more and more pregnant people are traveling to Illinois for abortion amid growing restrictions in Missouri.

On Wednesday, state Rep. Adam Schnelting (R-Saint Charles) filed HB 339, which would establish the “Pain Capable Unborn Child Protection Act.” At the time of publication, the actual text of measure had yet to be filed. But according to the bill summary, it’s a 20-week ban. Based on model legislation drafted by the NRLC, “Pain-Capable Unborn Child Protection” measures prohibit abortion after 20 weeks’ gestation on the unfounded claim that fetuses can feel pain at that point of pregnancy. HB 339would prohibit a person from performing or inducing, or attempting to perform or induce, an abortion of a “fetus capable of feeling pain” unless it’s necessary to prevent serious health risk to the pregnant person. A physician who violates this measure would be at risk of losing their medical license. An identical bill introduced earlier in the year managed to pass the state house, but failed to advance in the senate.

South Dakota

Republicans in South Dakota last week prefiled a measure prohibiting a physician from performing an abortion on a pregnant person without first displaying the sonogram images of the fetus so that the pregnant person may view the images and hear any heart sounds. Current state law prohibits abortion facilities from performing an abortion without first offering the pregnant person the opportunity to view a sonogram of the fetus. SB 6 would require a physician to provide verbal explanations of both the images and audio resulting from the ultrasound. The abortion facility would need to document any instance where a patient declines to receive such verbal explanations. One of the primary sponsors of the bill, state Sen. Stace Nelson (R-Fulton), is hell-bent on ending abortion, which he says is “an evil, barbaric, pagan, brutal practice [and] the antithesis of liberty.” He seems fun!

Kentucky

In case you missed it, Kentucky became the third state to file a fetal heartbeat abortion ban for the 2019 legislative session. Like most of the others, it would ban abortion as early as six weeks into a pregnancy, unless it’s necessary to save the life of, or prevent serious injury to, the pregnant person. Filed last week by freshman state Rep. Robert Goforth (R-East Bernstadt), the bill would make it a felony to perform or attempt to perform an abortion when a fetal heartbeat has been detected.

Ohio

Despite indicating he would, Ohio Gov. John Kasich (R) still hasn’t vetoed HB 258, an unconstitutional fetal heartbeat abortion ban. While most heartbeat abortion bans would ban abortion as early as six weeks into a pregnancy, HB 258 was amended to clarify that the use of a transvaginal ultrasound would not be required. This change meant that the law would instead ban abortions anywhere from nine to 12 weeks’ gestation. Cool amendment. Still unconstitutional.

Kasich hasn’t yet indicated whether or not he’ll sign SB 145, the law banning the most commonly used method of second-trimester abortion. Which means he’s probably going to pull a 2016: Veto the heartbeat bill and approve the slightly-less restrictive—but still terrible—abortion ban so he can pretend to be more moderate than he actually is. Or maybe he’ll surprise me, and I’ll have to change my New Year’s resolution to stop being such a Debbie Downer. Even if he vetoes both bills, lawmakers have already scheduled a post-Christmas session to override him. Right now, it looks like the heartbeat bill won’t have enough votes for an override—but the D and E ban would. Once again, happy holidays.